NEW YORK — Nearly every day of his hush-money criminal trial, former President Donald Trump says he can’t talk about the case.
A gag order prohibits Trump from commenting publicly on witnesses, jurors and some others involved in the case. A New York judge has already found that Trump, the presumptive Republican nominee for president, has repeatedly violated the order, fining him $9,000 and warning that he could face jail time if he doesn’t comply holds.
But the order does not prevent Trump from talking about the allegations against him or commenting on the judge or the top prosecutor chosen. And despite a recent comment from Trump, this won’t stop him from testifying in court if he wants to.
Fighting the charges against him as he runs for president, Trump has at times created confusion about what he can and cannot do in the case. He has pleaded not guilty.
So what does the command do, what doesn’t it and where does it come from?
In general, a gag order is a directive from a judge that prohibits someone or persons involved in a lawsuit from publicly commenting on some or all aspects of it. In Trump’s case, it’s called an “Order Restricting Extrajudicial Statements,” with “extrajudicial” meaning outside the court.
Silence orders, especially in high-profile cases, are intended to prevent information presented outside a courtroom from influencing what happens inside.
Trump is also subject to a silence order in his federal criminal election interference case in Washington. That order limits what he can say about witnesses, attorneys in the case and court staff, although an appeals court gave him freedom to speak about special prosecutor Jack Smith, who brought the case.
In his recent civil fraud trial in New York, Trump was fined a total of $15,000 for comments he made about that judge’s law clerk after a gag order prohibited trial participants from “posting, emailing or speaking publicly” ” about the court staff.
The U.S. Supreme Court has recognized that gag orders can conflict with the right to due process and the right to free speech. The court struck down a number of orders that prohibited the press from reporting on certain cases or legal proceedings, and rejected a Nevada court ruling that limited what all lawyers could say outside the court as too vague.
Yes. Before the trial, he asked a state appeals court to delay the trial while he appealed the silence order, but the court refused. His appeal against the order itself is still ongoing.
The silence order was initially imposed on March 26 and prohibits Trump from making public statements or directing others to make public statements about any juror and any “reasonably anticipated” witness participation in the investigation or the process.
It also prohibits any statement about trial attorneys, court personnel, prosecutorial associates, and family members of any of the above, to the extent the statements are intended to “materially interfere with, or induce others to materially interfere with” their work on the case. the case “or with the knowledge that such interference is likely to result.”
The order does not apply to Judge Juan M. Merchan or to Manhattan District Attorney Alvin Bragg, whose office is prosecuting the case. However, it does apply to comments about their family members. Merchan added that provision on April 1 after Trump lashed out on social media at the judge’s daughter, a Democratic political consultant, and made a claim about her that was later dismissed by court officials.
Trump is also allowed to talk about his political opponents, Merchan made clear on Thursday.
The order also does not prohibit witnesses from commenting on Trump. Michael Cohen, Trump’s ex-lawyer and an expected witness, has routinely attacked his former boss, prompting Trump to complain that he could not respond in kind.
Yes. The U.S. Supreme Court has ruled that criminal defendants have the constitutional right to take a stand in their defense — or not to do so.
There was some confusion after Trump said Thursday that he was “not allowed to testify” because of the gag order. In context, it appeared that he was actually referring to his ability to respond to a reporter’s question in the courtroom about a witness’s testimony that afternoon.
Trump made clear to reporters on Friday that he understood the order did not prevent witnesses. Merchan emphasized the same in court.
“I want to emphasize, Mr. Trump, that you have the absolute right to testify at trial, if you decide to do so after consultation with your attorneys,” Merchan said.
Merchan found that Trump violated the silence order with social media posts attacking Cohen. Among the offensive posts: one asking whether “disgraced attorney and criminal Michael Cohen has been prosecuted for LYING,” a repost of a New York Post article that described Cohen as a “serious perjurer,” and a post from Trump that referenced Fox News host Jesse Watters’ claim that liberal activists lied to infiltrate the jury.
Merchan noted that Trump’s comment on the Watters segment misrepresented what the host had actually said, making the comment “the words of the defendant himself.”
On the other hand, Merchan declined to chastise Trump for an April 10 post that called Cohen and Stormy Daniels, the porn performer who received a $130,000 hush money payment and who is at the heart of the case, “sleaze bags.”
Trump claimed he was responding to Cohen’s previous comments, and the judge said the back-and-forth made him question whether that message met the bar of a violation.
When Merchan fined Trump $1,000 each for nine violations — the maximum fine allowed by law — he wrote that “prison may be a necessary punishment” for some wealthy defendants undeterred by such a sum.
Merchan added that he “will not tolerate continued intentional violations of the gag order” and that, if “necessary and appropriate,” he “will impose a custodial sentence,” which means he must serve prison time.
It is unclear what would reach the level of ‘necessary and appropriate’.
Attorney Todd Blanche indicated in court on Friday that he plans to appeal the judge’s ruling last week that Trump violated the silence order.
Prosecutors have asked Merchan to hold Trump in contempt again and fine him $1,000 for each of four alleged violations from April 22 to 25. But the prosecutor is not asking for the former president to be imprisoned over these comments because they occurred before Merchan’s jailhouse warning and because “we prefer to minimize the disruption of these proceedings,” said prosecutor Christopher Conroy.
